Breast cancer patient told she was lucky to have a free NHS boob job wins harassment case against Oakham recruitment agency Textbook Teachers
A breast cancer patient who claimed her boss had joked she was 'lucky to have a free boob job off the NHS' has won a harassment case against an Oakham-based teaching agency.
Aggie Kownacka, 39, brought the case against Textbook Teachers after treatment she claimed to have received between June and July 2018 while working at the agency's Oakham head office as recruitment account manager.
At a virtual employment tribunal, Ms Kownacka was told her treatment did amount to harassment, but lost further claims of direct disability discrimination and failure to make reasonable adjustments for time off work.
The tribunal was told she was diagnosed with breast cancer on May 23, 2018, and had surgery the following month on June 12.
In a phone conversation on June 6, 2018, Ms Kownacka alleged managing director Sharon Paul had said 'it's not like you’re going to die', 'what do you need that amount of time off for?', and 'it's only early stages of cancer' while advising she should focus on upcoming work.
Ms Kownacka, who resigned in December 2018, had also been told she was taking her condition 'too seriously', and that being forced into the menopause at 37 and unable to conceive children was 'no big deal'.
Her husband said his wife had looked 'very upset' while on the call and cried afterwards.
Ms Paul denied 'this was the basis of our conversation', but the tribunal considered on balance the claimant was telling the truth.
In a further phone call 12 days later, Ms Kownacka said Ms Paul had asked if she was ready to go back to work and followed with 'I’m having to come in and fill in for you!'.
She also claimed to have been told she was 'lucky to have a free boob job off the NHS', and asked if she was happy with her 'new breast size' and if she was going to have another 'free boob job' so the other matched.
Ms Paul said the conversation had been amicable and denied making the comments, but the tribunal concluded it was 'more likely than not' the comments had been made.
Then on July 13, 2018, Ms Paul was alleged to have told Ms Kownacka she would have a high libido because of her hormone treatment, and that she 'had a treat for her return to work - a male Polish PE teacher'.
The allegations were strongly denied, but the tribunal 'preferred' Ms Kownacka's evidence, and concluded it was 'more likely than not that' that Ms Paul had discussed the claimant’s libido.
Ruling against the claim of discrimination, the tribunal believed the 'highly business-focussed' Ms Paul did not treat Ms Kownacka differently to how she would have treated anyone else.
Employment Judge Martin Brewer had 'no doubt' her intentions were to deal with Ms Kownacka in a way 'she felt was appropriate'.
"She was, we find, intending to engage with the claimant in what were clearly difficult circumstances, but in doing so in the manner set out she showed a lack of insight, sensitivity and empathy," he said.
"The period in question was a difficult time for the claimant.
"She had been given a life-changing diagnosis, she was uncertain about the course of the disease, the operation, any ongoing treatment and more generally about the future.
"We are in no doubt that Ms Paul’s comments had the effect of violating the claimant’s dignity and of creating an offensive environment for her.
"We stress that we do not find that Ms Paul intended this, but both subjectively it was the case, and objectively the claimant was reasonable in all the circumstances in feeling the way she did.
"To that end the claim of harassment related to disability is made out."
The judge added: "We have no doubt that every cancer patient’s experience is personal to them and it cannot be presumed that if one person deals with the diagnosis by say stoicism and does not mind others making light of the disease, others with the same diagnosis will feel the same."